President Obama has been threatening to take unilateral action on immigration through executive action after the election. One of the threatened actions is to change the method of determining the annual level of legal immigration. In almost all cases, immigrant visas (green cards) are subject to quotas. Rather than count all of the visas granted, such a change would count only the principal applicants against the numerical caps, and not include any dependents (spouses and minor children), thus increasing immigration significantly without authorization from Congress.
Former Rep. Bruce Morrison (D-Conn.), now an immigration lawyer and lobbyist, pushed for this scam in a Wall Street Journal letter to the editor this week.
Mr. Morrison was chairman of the House Judiciary Committee during the enactment of the Immigration Act of 1990. He says, "In 1990 Congress authorized the president, if he chose, to stop counting dependents of the principal immigrant in both the family and employment-based legal immigration categories. ... All the president has to do is choose to count only the principal applicant, not his or her dependents."
His source of authority is, "I know because I was part of the team that wrote the statutory language when I was in Congress."
Unfortunately for Mr. Morrison, the memory of a former congressman is not the law. The plain language of the statute that Mr. Morrison wrote directly contradicts his assertion. The Immigration Act of 1990 explicitly imposes quotas on green cards for dependents.
The very first section of the Immigration Act of 1990, § 101 (codified at 8 U.S.C. § 1151) states that all aliens admitted into the United States for immigration fall into one of three categories with annual limits (unless they fit an exception described below). Those categories are:
- Diversity immigrants
This section of the act defines six categories of immigrants that do not have annual quotas (e.g., spouses and children of U.S. citizens), none of which apply to dependents of those receiving family-sponsored, employment-based, or diversity green cards. Because such dependents do not fit any of the exceptions, the plain language of this section unambiguously states that some quota applies to dependent immigrants entering under the three major categories.
In Section 162(a) (codified at 8 U.S.C. § 1153) "Treatment of Family Members", we find what quota applies to dependents. Such a dependent is "entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent." The statute unambiguously states dependents have the same status as the principal applicant. Therefore, immigrant visas granted to dependents apply to the immigration quota.
Furthermore, § 102 of the act (codified at 8 U.S.C. 1152) specifies how dependents are to be counted with regard to per country limits that apply to family-sponsored and employment-based green cards. This whole section makes no sense if dependents are not counted in the quota.
The only place the 1990 act exempts dependents from immigration quotas is § 205 (codified at 8 U.S.C. 1184(g)) for non-immigrant visas.
The regulations Mr. Morrison advocates clearly are in excess of the president's authority. That might not stop this president from acting anyway. The political calculation is that few would undertake the massive effort to challenge such regulations. If someone did mount a challenge, the government would hope the judge assigned was a political animal who would find some way to dismiss the case on standing.